What is Common Law Marriage?

What is common law marriage, and which states recognize common marriages today?

Although specific requirements vary in the states where common-law marriages are legal, a few commonalities define this type of partnership:

  • Long-term cohabitation: The couple has lived together for a long time. The length of time required varies from state to state.
  • Presents as a married couple: The couple presents themselves as “husband and wife” to family, friends, and the community by taking the same last name, holding joint credit cards and bank accounts, or filing their taxes jointly.
  • Capacity to marry: Both parties must be legally able to marry. Each person in the couple is at least the legally recognized age to marry in their state, is considered of sound mind, and neither can be married to anyone else.
  • Intent to marry: The couple is required to have the intention of getting married.

The Supreme Court recognized the validity of common law marriages in 1877, allowing only heterosexual couples the right to this type of union. Most states have banned common-law marriages. Some states offer limited recognition of common-law marriages if requirements were met before state law banned new common-law unions.

Common-Law vs. Traditional Marriage

The main difference between common-law marriages and traditional marriages lies mainly in the formation of each respective union.

After establishing a common-law marriage, state law requires the union to be treated like any other marriage.

In most cases, there are no differences in the rights of either spouse during or after the marriage.

A written agreement stating the couple’s intention to marry may be considered as the most clear intention of establishing a common-law marriage. The final word would be a judge recognizing the existence of a common-law partnership.

A Binding Marriage

Once established, a common-law marriage is just as valid as a formalized marriage. Common law marriages last until a court grants a divorce or one partner dies.

But what happens if your partner dies before you’ve legally established your common law marriage? If this happens, you’ll have to prove your marriage to be able to inherit and receive assets from your spouse, such as:

  • Insurance benefits
  • Pension
  • Social Security Survivor’s benefits

States (and D.C.) That Fully Recognize Common Law Marriage

Today, the following states fully recognize common-law marriages:

  • Colorado
  • Iowa
  • Kansas
  • Montana
  • Rhode Island
  • Texas
  • Utah (however, not called common law marriage)
  • Washington D.C.

Limited Recognition Common Law States

A few states offer limited recognition of common-law marriages. Limited recognition of common law marriages means that these states no longer allow new common-law marriages, but still recognize those marriages that met requirements before the state banned them.

Divorcing a Common Law Spouse

Common-law couples may have avoided going a traditional route of getting a marriage license and going through a ceremony, but divorcing is a different story.

Not one state that recognizes common-law marriages recognizes common law divorces. Any common-law couple wanting to end their marriage is required to go through the same court proceedings as traditionally married couples seeking a divorce.

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This article is intended to be helpful and informative. But even common legal matters can become complex and stressful. A qualified family lawyer can address your particular legal needs, explain the law, and represent you in court. Take the first step now and contact an attorney in your area from our directory to discuss your specific legal situation.

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